Thursday, March 10, 2016

Eastpointe court blocked from 'pay or stay' sentencing

Michigan is one step closer to ending a perverse judicial practice that regularly jails individuals who are unable to pay court fines and fees for offenses as minor as a traffic violation.

On Wednesday, Macomb County Circuit Court entered a final order prohibiting an Eastpointe judge from jailing poor defendants without first holding a hearing to assess indigency and prove that a person "willingly" chose not to pay.

"We’re elated about the court’s order because it upholds a basic principle of fairness in our nation — that nobody should be jailed just because he or she is too poor to pay fines, fees and costs," ACLU of Michigan legal director Michael J. Steinberg said in a statement. "We are relieved to know that defendants in Eastpointe no longer have to worry about landing in what amounts to illegal debtors’ prisons."

The ACLU filed a lawsuit in July asking the circuit court to take "superintending control" over the 38th District Court in Eastpointe, where an unconstitutional "pay or stay" sentencing pattern emerged. The suit was filed in response to practices employed by Judge Carl F. Gerds III, who court witnesses say regularly sentenced people who couldn't afford their court fines without determining the reason for the nonpayment first. This clearly flouts federal law, considering in 1983 the U.S. Supreme Court banned debtors prisons when it ruled that courts could not jail a person simply for being unable to pay.

The High Court decision mandated that judges must hold indigency hearings prior to sentencing, and if a person couldn't pay, judges should give them the option of other forms of sentencing, such as community service. Unfortunately, these hearings are rare nationally and locally — as was the case in Judge Gerds' court room.

One particularly egregious case that he handled dealt with Eastpointe resident Donna Anderson, who "was facing jail time because she could not afford to pay a $455 fine related to a minor dog-ordinance infraction," according to the ACLU.

Anderson's ACLU attorneys Dan Korobkin and Miriam Aukerman argued in court that the system being perpetuated by Judge Gerds was creating a "two-tier system of justice" where those who could pay court fees immediately were free to go and those who were poor found themselves behind bars.

Eastpointe, of course, is not the only court that engages in the "pay or stay" system. In September, the arrangement was highlighted after David Stojcevski, a Macomb County resident, was found dead in his jail cell 17 days into a 30-day sentence.

While Stojcevski's death — a reaction to drug withdrawal — raised questions about deaths in police custody, it also highlighted the perverse "pay or stay" routine. In Stojcevski's case, the Roseville native owed a $772 fine stemming from two outstanding traffic tickets.

Similar to Anderson, Stojcevski was indigent and unable to pay the fines. This, however, was never considered when Roseville District Judge Joseph Boedeker sentenced him.

“As disturbing as Mr. Stojcevski’s maltreatment was, we are also saddened and outraged by the fact that he was thrown in jail for no other reason than he was too poor to pay a fine,” Aukerman wrote in an October letter asking Department of Justice officials to investigate not only the fatality but the “pay-or-stay" system that sent Stojcevski to jail. "The Constitution deems these ‘pay-or-stay’ practices unlawful, meaning Mr. Stojcevski died needlessly in an illegal debtors’ prison."

The practice isn't only accused of creating a two-tiered system, but it maintains a cycle of poverty that is nearly impossible to escape.

At a University of Michigan Law School Symposium in February called "Innocent Until Proven Poor," Jonathan A. Smith, an associate dean at the University of the District of Columbia, spoke about the "cascade of horribles" that occurs when poor people get sucked into a legal system that allows "pay or stay" practices to thrive.

"You get a traffic ticket you can’t pay, then there’s a warrant for your arrest, you might lose your license, then you get a more serious offense because you’re now driving without a license because you got to work. At one point you may spend time in jail, lose your job, lose your apartment — I’ve even had people who’ve lost their kids for things as small as a traffic ticket that they couldn’t pay," says Smith, who contends that it’s not that people are unable or unwilling to obey the law, but rather are tangled up in it as fees and penalties accrue.

While the circuit court's decision is a step in the right direction, the ACLU hopes to see systemic change of the judicial system on a broader level. The organization is pushing for the Michigan Supreme Court to adopt a series of reforms that would specifically prohibit judges from lapsing into the "pay or stay" pattern.

Of course, while reforms are appreciated and it will be good for judges to be reminded of their obligations to hold indigency hearings, the reality is this is technically already required based on the Supreme Court's decision. Combating the bigger issues of the pay-or-stay vacuum rests with how the judicial system is financially supported.

"A lot of these courts have turned into really important sources of revenue for local governments. They don't want to have to raise that money by raising taxes, because people don't like higher taxes," Human Rights Watch's Chris Albin-Lackey told me last year when I reported on similar issues in Georgia for Mother Jones. "And so there is a really powerful and perverse incentive for public officials, and even judges, to not ask too many questions about whether they're really doing right by people when the courts are squeezing money out of them."